#### J. T. BOSTWICK and BROTHER v. LAURINBURG AND SOUTHERN RAILROAD COMPANY.

(Filed 28 April, 1920.)

1. Judgments — Default and Enquiry — Pleadings.

Allegations of a complaint against a railroad to recover a specified amount of damage to shipment of carload of cantaloupes for defendant’s failure of its obligation to furnish cars at a specified time and place for the loading, are insufficient for judgment by default final, and such judgment may not be rendered in the course and practice of the Courts.

2. Judgments — Irregular Judgments — Motion to Set Aside — Limitation of Actions — Statutes.

Where a judgment by default has been irregularly entered, it may be set aside, on motion made within a reasonable time and on a proper showing of merits, in the sound legal discretion of the Court, and in proper instances more than twelve months after the rendition of the judgment, this period being a statutory restriction applying only to judgments entered according to the course and practice of the Courts, wherein it is necessary that motions to set aside the judgments be made. Rev., see. 513.

3. Judgments — Default Final — Motions—Statutes—Limitation of Actions.

Allegations in the complaint in an action to recover damages to a shipment of cantaloupes that it had been sold to a particular customer at a certain price, which sale had been lost by the breach of contract of defendant railroad to furnish a car; that upon presentation of claim the defendant had instructed plaintiff to sell the melons to the best advantage and deduct the price from the total demand, which the plaintiff had done leaving a balance in a certain sum set out in the complaint for which judgment is claimed, and showing the amount of loss deducted, is sufficient to sustain a judgment by default final, in that sum, for the want of an answer in accordance with the course and practice of the Courts.

*4864. Judgments— Default— Pleadings — Allegations—Several Causes — Default Pinal.

Where a complaint states two or more causes of action arising from the same default and any one is sufficient to uphold a judgment by default final for the want of an answer, which has been entered in the due course and practice of the Courts, such judgment will be upheld.

5. Judgments — Default and Enquiry — Default Final — Implied Admissions —Definite Damages — Computation—Statutes.

Where a judgment by default may be entered in the due course and practice of the Courts, an inquiry is only necessary where the amount of the claim is uncertain, but where the claim is precise and final by the agreement of the parties or can be rendered certain by mere computation, there is no need of proof, for the judgment by default admits the claim, and a judgment by default final should be entered. Rev., 556.

6. Pleadings — Interpretation of Verification.

The verification to a complaint upon which judgment by default final for the want of an answer has been rendered, is not objectionable on the ground that it apparently shows that the plaintiff appeared before himself for the purpose, when by a proper perusal of the affidavit it will show that it followed the form approved and required by the statute and precedents, and was duly made before the clerk of the Superior Court in which the cause was pending.

MotioN to set aside judgment by default final, beard before Finley, at March Term, 1920, of Scotland.

Tbe general course of proceedings leading up to tbe principal judgment are embodied in bis Honor’s present judgment denying tbe motion as follows: ■

“1. That summons in this action was issued on 4 July, 1917, returnable to October Term, 1917, of Scotland Superior Court, and duly served upon tbe defendant on 5 July, 1917; that tbe plaintiffs filed their complaint on 20 September, 1917, and furnished a copy to defendant’s counsel, Hon. Q. B. Patterson.

“2. That tbe case was calendared for trial at tbe March Term, 1918, and at tbe April Term, 1918, and continued to allow defendant to file answer.

“3. That no answer was filed, and at tbe June Term, 1918, judgment was rendered by default final for failure to file answer.

“4. That tbe motion to set aside this judgment was made at October Term, 1919, more than twelve months after tbe rendition of tbe same, otherwise tbe defendant has a good and meritorious defense.

“5. That upon tbe defendant’s contention that tbe judgment is irregular, tbe court bolds, as a matter of law, that tbe verification of tbe complaint, as appears of record, is sufficient under statute to support the judgment, and tbe court further bolds as a matter of law that complaint states such a cause of action as will support tbe judgment.

*487“6. Tbat. tbe general order allowing time to file pleadings .made at tbe June Term, 1918, was made after tbe rendition of tbe said judgment.

“Upon tbe foregoing facts tbe court declines to set aside tbe judgment, as a matter of law, and tbe defendant excepts and appeals to tbe Supreme Court.”

Russell & Weatherspoon for plaintiff.

Cox & Dunn and G. B. Patterson for defendant.

Hoke, J.

Defendant seeks to sustain bis application to set aside tbe original judgment on two grounds:

1. Tbat tbe complaint is not properly verified.

2. Tbat it does not state a cause of action tbat justifies a judgment by default final.

Considering these positions in reverse order, tbe complaint states plaintiff’s claim in tbe form of 3 causes of action, and demanding recovery for tbe same amount in eacb, $984.04. As a first cause of action, plaintiff avers: Tbat, in tbe late summer of 1916, tbey were engaged in shipping cantaloupes to market in car-load lots over defendant road, and bad a contract with defendant company tbat, on notice given by 7 p.m. of one day, defendant road would have tbe designated number of refrigerator cars on at tbe shipping station at Laurinburg, on tbe following morning by 7 a.m.; tbat tbe notice bad been given for 4 cars to be in readiness at tbe proper point on 1 August, 1916, and in expectation of compliance, plaintiff bad a sufficient number of cantaloupes properly crated, etc., and ready for shipment at tbe appointed hour and place; tbat defendant, in breach of its contract, failed to supply tbe cars till late in tbe afternoon, leaving tbe said cantaloupes exposed, etc., whereby tbey were greatly injured and deteriorated in value, to plaintiff’s damage, $984.04.

Tbe third cause of action, alleging tbe same damages in bind and amount, is substantially a repetition of tbe first, and both containing a claim only for unascertained damages, a judgment by default final is irregular, and, on application made within a reasonable time and on a proper showing of merits, may be set aside in tbe sound legal discretion of tbe court. Beckton v. Dunn, 137 N. C., 559; Witt v. Long, 93 N. C., 388; Williams v. Lumber Co., 118 N. C., 928-936. And this, in proper instances, though tbe motions may be made more than 12 months from tbe rendition of tbe judgment, tbe decisions on tbe subject being to tbe effect tbat this 12 months limitation is a statutory restriction, Rev., 513, applying only to judgments which have been taken according to tbe course and practice of tbe court. Calmes v. Lambert, 153 N. C., 248, and authorities cited.

*488In the second cause of action, plaintiff states his claim in a more definite and precise way, as follows:

After alleging that plaintiff at that time was engaged in shipping cantaloupes to market, and thát defendant was to supply refrigerator cars, on notice, there was a breach of contract, causing great damage and practical loss of melons, the complaint avers further that plaintiff had sold these particular melons to a responsible purchaser for $1,088.47; that the bargain was lost by reason of the injury occasioned by defendant’s breach of contract; that plaintiff presented claim for the entire price to defendant company, and was told by the “duly authorized agent of defendant to sell the damaged melons to the best advantage, credit the purchase price received on the bill as rendered, and that the defendant road would pay plaintiff the difference; that plaintiff, in compliance with these instructions, sold the melons for $104.48, credited same on the bill rendered, $1,088.47, leaving a balance due plaintiff of $984.04, for which judgment is claimed.

“It is held with us that when a complaint states two or more causes of action and any one of them is sufficient to uphold a judgment by default final, such judgment will be uphéld, and this being true, we are of opinion that plaintiff’s suit, as presented in this second cause of action, is sufficiently definite and precise to support the judgment, that the same has been entered according to the course and practice of the court, and is in all respects regular. Scott v. Life Association, 137 N. C., 515-522; Cowles v. Cowles, 121 N. C., 272; Adrian & Vollers v. Jackson, 75 N. C., 536.

“In Adrian & Voller’s case it was held that, where a claim for damages is precise and final by the agreement of the parties, or can be rendered certain by mere computation, there is no need of proof, as the judgment by default admits the claim. An inquiry is necessary only when the claim is uncertain. These decisions are but the proper and necessary construction of our statute on the subject, Rev., 556, which provides that a judgment by default final may be had on failure to answer, when a complaint sets forth one or more causes of action consisting of a breach of an express or implied contract to pay absolutely or upon a contingency a sum or sums of money fixed by the terms of the contract or capable of being ascertained thereupon by computation.”

The motion having been made more than 12 months after rendition to the judgment, defendant’s right to relief on account of surprise or excusable neglect is precluded by the express terms of the statute, Rev., 513, requiring that such applications as against a regular judgment must be made within 12 months.

In this aspect of the matter, therefore, his Honor was clearly right in holding against defendant as a conclusion of law. Lee v. McCracken, *489 170 N. C., 575. Tbe objection to tbe verification is without merit. Tbis was placed on tbe ground tbat tbe affidavit apparently showed that plaintiff bad appeared before himself. But a proper perusal of tbe affidavit will show tbat it is made by one of tbe plaintiffs; tbat it follows tbe form approved and required by tbe statute and precedents, and tbat it was duly made before tbe clerk, and here, too, we are of opinion tbat tbe judgment is according to tbe course and practice of tbe court, and has been properly upheld.

There is no error, and tbe judgment is

Affirmed.